Law commision - job!!!!
- fundamental review of various elements of murder and manslaughter
- Publication of murder report 06
- "law on murder is a mess and should ne comprehensivly reviewed for the 1st time in 1/2 a century"
- July 08 - Gov. consulation paper some prosposals to intodice most notably not American style of degree stucture!
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criticism of mR of murder
- "malice aforethought" = misleading!!!
- one time: only intention to kill now bleering distinction and recklessness through expansin of oblique intent!!!
- attempt to rephrase jury Q in Woolin and moloney etc = further confusion, MR of murder now satisfied throgh "extreme recklessness"
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criticism of sentencing!!!
- convicted of murder = automatic life sentence!!!
- treat all murders same - run counter to principle of flexability!!!
- Theory: someones who kills in self defence e.g. Clegg could be have same sentence as Huntly!!!
- Consulation exercise: 64/146 - mandatory life sentence = "indefensible should cease"
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criticisms of diminished responsibility!!!
- s2 homicide act 1957
- "abnormailty of mind" = confuse jury?! > not clearly dfeined by parliament and no accepted medical definition!!!
- female alternative to provocation!!!! - cerain gender specific conditions covered under abnormality off mind despiite notbeing that unusual!!! e.g. PMT (reynolds), BWS ( ahluwalia)
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endagering public safety?!
- before 1957 act - 40% plead Insanity
- now, most DR > 30% prison sentence, hospital oder s3 mental health act, 1/5 plea = jury most accepted without need for trial
- may endager public safety?!
- person may be released from prison 4/5 years?! = abnormality of mind not fixed
- Insanity only plea - public better protected. use example Les Brown (Australia)
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provocation - s3 HA
- "sudden and tempary" - biased towards people of quick temper and problematic towards women - suffer slow burn (Ahluwalia)
- "cooling off period" concept not fot definition of sudden and temporary - law need to be defined!!!
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adantages of current - law
- flexability - development of MR of murder - Bland v Re A (siemise twins) > unique moral situations
- voluntary mansluaghter justice - Ahluwalia
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law comission proposals
- logical system identify most serious forms of killing = murder, but might attempt to identify other forms of and grade them for sentencing - similar to US system of degrees - degree linked to tarif sentence > more consistencies
- first degree murder (intend to kill or intention to cause serious injury whilist being aware of serious risk of causing death) = most serious only catergory that would attract mandatory life sentence
- second degree ( intention to cause GBH or intention to cause some harm whilist being aware os serious risk of causing death) = not attract automatic life senence
- provocation rebranded as 2 defences - encompass situation where person uses excessive self defence (clegg) > so now 2nd rather than 1st degree murder
- P and DR rebranded!!! - P : " killing in response to fear of violence" or "killing in response to words or conduct that made D feel a justifiable sense of being seriously wronged"
- "recognised medical condition" - replace DR
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advantages of proposals!!!
- "just deserves" docterine!!
- most serious crime given label that reflects this
- only those convicted of most serious defences = mandatory life sentence!!! contrast with current law where those found guily who only intended GBH found guilty of murder (automatic life sentence)
- clearer guidance for judge and jury on provoking conduct and mental conditions!! - through rebranding of partial defences in 2nd degree murder
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criticisms of proposals
- reduce scope of those found guilty of 1st degree murder - "intention to kill" places v. high burden of proof on prosecution
- loss of v. manslaughter into 2nd degree murder - battered women labelled murders by lay person as "2nd degree" prexix will have little impact of lay persons undersatnding of the term!!! - goes against grain of "fair labelling" - unjust on offender?!
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